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2010 Supreme(Bom) 1545
2011(6) ALL MR 713
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
MOHIT S. SHAH, C.J. & DR. D.Y.CHANDRACHUD, J.
Omkar Realtors and Developers Pvt. Ltd. – Appellant
Vs.
Slum Rehabilitation Authority & Ors. – Respondent
Writ Petition No.1606 of 2010 ALONG With Writ Petition No.1999 of 2010 AND Writ Petition (Lodging) No.21 03 of 2010
Decided On : 26th October, 2010.
Mr. JANAK DWARKADAS, Mr. PHAVIN SAMDANI, Senior Advocates, with Mr. CHIRAG BALSARA, Mr. SHARAN JAGTIANI, Mr. AFTAB DIAMONDWALA, Mr. JAYESH VYAS and Ms. SHEETAL ANGRE i/b M/s DIVYA SHAH Associates for the Petitioners in WP. No. 1606/2010, for Respondent No.6 in WP. No. 1999/2010 and for Respondent No.4 in WP. (L) No.21 03/2010.
Mr. D.O. MADON, Senior Advocate, with Mr. S.G SURANa for the Petitioners in WP. No. 1999/2010 and Respondent No.2 in W.P. No. 1606/2010 & WP.(L) No.2103/2010.
Mr. ATUL RAJY ADHAKSHY A, Senior Advocate, with Mr. S.S. REDDY for the Petitioners in WP. (L) NO.2] 03/20 1 0 and for Respondent No.4 in W.P. No.1999/2010 and with Mr. D.R. SHAH for Respondent No.3 in WP. No. 1606/2010.
Mr. D.A. NALAWADE, Government Pleader, with Mr. MILIND MORE and Mr. B.H. MEHTA, Assistant Government Pleaders, for the State in all the Writ Petitions.
Mr. G.D. UTHANGALE for Respondent No.1 and 6 in W.P.1606/2010 and in WP. (L) No.2103/2010 and Respondent No.2 and 7 in WP. No. 1999/2010. Mr. A.Y. SAKHARE, Senior Advocate, with Mr. A.R. SHAIKH for Respondent No.4 in WP. No.1606/2010, for Respondent No.4. In WP. No. 1999/2010 and for Respondent No.3 in WP. (L) No.21 03/2010.
Ms. V.S. GHARPURE for Respondent No.5 in WP. No. 1606/2010 and W.P. (L) No.21 03/2010 and for Respondent No.3 in WP. No.1999/2010.
Headnote:Maharashtra Slum Areas (Improvement, Clearance and Re-development) Act, 1971 - Section 13-D.C. Regulation, 33 (10)-Development Scheme-Implementation of Scheme-Right of individual slum dweller-To decide which society or developer should implement scheme-Individual slum dweller have no such right-But when society itself lost confidence in developer and slum re-habilitation authority found substance in grievance of society-Views of entire cooperative society cannot be said to be irrelevant.-The individual slum dweller may not have a right to decide which society or developer should implement the scheme, but when the society itself has lost confidence in the developer whose acts of omission and commission have already been taken into consideration by the Slum Rehabilitation Authority and the Slum Rehabilitation Authority found substance in the grievances of the society, it is not possible to say that the views of the entire co-operative society become irrelevant. The very fact that the scheme of the Slum Rehabilitation Authority provides that the developer should obtain consent of 70% of the members of the society goes to show that the developer should have confidence of the society. May be after the LOI is issued in favour of the developer, if for some extraneous reasons the society passes a resolution for removing the developer without any justification, the views of the society may not be acted upon by Slum Rehabilitation.
Rule in all the writ petitions, returnable forthwith.
2. With the consent of the learned counsel for the parties, we have taken up the Rule for final disposal.
3. All these petitions challenge the order dated 30th June 20 10 passed by the High Powered Committee in regard to the slum rehabilitation scheme in respect of the lands in question.
4. The facts leading to filing of these petitions broadly stated are as under :-
i) On the lands in question in Parel, Mumbai, whose occupants have formed a cooperative housing society called "Khapridev cooperative housing society limited" (hereinafter referred to as "the cooperative society"), the Slum Redevelopment Committee (SRD) had sanctioned a slum redevelopment scheme and had issued a letter of intent dated 8 November 1995 in favour of a developer called M/s Priyanka Developers. The intimation of approval of the plans for one of the rehabilitation buildings in the same scheme was also granted in favour of the said developer on 8 November 1995. However, the said developer M/s Priyanka Developers failed to show any progress in implementation of the slum rehabilitation scheme. At a meeting held on II January 2003, the general body of the co-operative society proposed that in place of M/s Priyanka Developers, a new developer called "M/s.Villayati Ram Mittal" be appointed for implementation of the said slum rehabilitation scheme. Accordingly, M/s Villayati Ram Mittal., came to be appointed as developers for the slum redevelopment scheme.
ii) On 17 January 2003 Annexure-II was issued by Mumbai Municipal Corporation and by conversion of the Slum Redevelopment Scheme to Slum Rehabilitation Scheme, fresh L.O.I. was issued by SRA on 11.08.2003 in the name of respondent no.3-M/s Villayati Ram Mittal under Development Control Regulation 33(1) read with Appendix. Permission to construct Transit Camp was issued by SRA to M/s Villayati Ram Mittal vide No.SRA/Eng/6761 FS/ML/LOI dated 11.07.2003.
iii) The society entered into development agreement with M/s Villayati Ram Mittal on 13.4.2004 and also executed Power of Attorney in favour of the latter. In the year 2004, the developer constructed accommodation for transit camp as per the permissions granted by the SRA. Simultaneously, the developer also commenced the work of rehabilitation building without obtaining IOA/CC from the concerned departments. On inspection by the concerned officials of the SRA, it was found that the developer had constructed rehabilitation building up to 6th floor on the D.P. Road and outside the slum boundary, and therefore, on 11.11.2004, stop work notice was issued by SRA to the said construction of rehab building.
iv) By a letter dated 19 August 2005, respondent No.2 society Informed the SRA that the society had lost confidence in respondent No.3 M/s. Villayati Ram Mittal and forwarded copy of the said resolution dated 14 August 2005. The co-operative society in its general body meeting passed a resolution to rescind the development agreement with M/s Villayati Ram Mittal on the ground that due, to improper construction of work in respect of rehabilitation building, the coupa operative society had expressed concern about the quality of work carried out by M/s Villayati Ram Mittal in respect of one rehabilitation building which was the only rehabilitation building constructed.
v) The SRA then issued a show cause notice dated 16 September 2005 (Exhibit "H") to respondent No.3 calling upon respondent No.3 to show cause why the LOI issued in favour of respondent No.3 should not be terminated on the following grounds:
(a) the work of rehabilitation building was carried out without obtaining commencement certificate;
(b) part of the rehabilitation building was carried out on DP road without having obtained approval for rehabilitation thereof; and
(c) respondent No.3 had carried out construction of rehabilitation building beyond the approved slum rehabilitation scheme/plot boundary on approved property.
vi) Respondent No.3 sent
